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Judge chides DOJ in NSA dispute

The judge who presides over the Foreign Intelligence Surveillance Court is chiding the Justice Department for failing to reveal to the court that litigants in at least two lawsuits over National Security Agency surveillance believed that outstanding orders from another court required the spy agency to keep telephone-call data indefinitely.

"The government, upon learning this information, should have made the FISC aware of the preservation orders and of the plaintiffs' understanding of their scope, regardless of whether the plaintiffs had made a 'specific request' that the FISC be so advised," FISC Judge Reggie Walton said in a 10-page order issued Friday (and posted here). "Not only did the government fail to do so, but the E-mail Correspondence [which plaintiffs later filed directly with the surveillance court] suggests that on February 28, 2014, the government sought to dissuade plaintiffs' counsel from immediately raising this issue with the FISC or the Northern District of California."

Walton acknowledged that it was possible the DOJ didn't make an intentional decision not to tell the court about the plaintiffs' view that existing orders barred destruction of the phone metadata, but he said government lawyers had a heightened obligation to keep the court fully apprised since it usually operates in secret and without the benefit of arguments or briefs from non-government lawyers.

"The government's failure to inform the FISC of the plaintiffs' understanding...may have resulted from imperfect communication or coordination within the Department of Justice rather than deliberate decision-making. Nonetheless, the Court expects the government to be far more attentive to its obligations in its practice before this Court," Walton wrote. He orders the government to explain its actions by April 2.

"We intend to comply with the court’s order and will be providing a submission by April 2," Justice Department spokesman Wyn Hornbuckle said Friday evening.

Walton issued an order earlier this month, rejecting the federal government's request to hang on to the phone metadata beyond the five-year point at which the surveillance court has insisted that the data be erased. However, his order assumed that there were no pending orders on the point from other courts hearing lawsuits challenging the surveillance.

Within days a judge assigned to some of those cases, San Francisco-based U.S. District Court Judge Jeffrey White, issued an order requiring the preservation of the metadata. He acted after plaintiffs in the cases argued that ithe data was covered by broad language in outstanding court orders.

Just after Walton's order emerged Friday, U.S. District Court Judge Jeffrey White issued a new order (posted here), appearing to instruct the NSA to preserve the call metadata indefinitely.

Plaintiffs in some of the pending lawsuits over NSA surveillance have argued that the data should be kept, at least for now, because it could be necessary to prove that records of telephone numbers they used were actually gathered as part of the spy agency's effort to trace phone calls of alleged terrorists.

UPDATE (Friday, 3:04 P.M.): This post has been updated with White's latest order.

UPDATE 2 (Friday, 3:21 P.M.): This post has been updated to clarify the plaintiffs' grounds for preserving the data.

UPDATE 3 (Friday, 6:19 P.M.): This post has been updated with comment from the Justice Department.